Gray Mountain

“Indeed it was, and is. Life near a strip mine is never dull. The ground shakes and cracks foundations. Coal dust fills the air and blankets everything. The well water turns orange. Rocks fly all the time. I had a case two years ago in West Virginia where a Mr. and Mrs. Herzog were sitting by their small pool on a warm Saturday afternoon and a one-ton boulder came from nowhere and landed square in the middle of the pool. They got drenched. The pool cracked. We sued the company and got a few bucks, but not much.”

“And you’ve sued Strayhorn Coal?”

“Oh, yes. We go to trial next Monday in Colton, Circuit Court.”

“The company won’t settle?”

“The company was fined by our fearless regulators. Hit ’em hard for twenty thousand bucks, which they have appealed. No, they won’t settle. They, along with their insurance company, have offered a hundred thousand.”

“A hundred thousand dollars for two dead kids?”

“Dead kids are not worth much, especially in Appalachia. They have no economic value because they, obviously, are not employed. It’s a great case for punitive damages—Strayhorn Coal is capitalized at half a billion dollars—and I’ll ask for a million or two. But the wise people who make the laws in Virginia decided years ago to cap punitive damages.”

“I think I remember this from the bar exam.”

“The cap is $350,000, regardless of how bad the defendant acted. It was a gift from our General Assembly to the insurance industry, like all caps.”

“You sound like my father.”

“You want to eat or stand here for the next hour.”

“I’m not sure I’m hungry.”

“Well, I am.” They sat at the table and unwrapped their sandwiches. Samantha took a small bite but had no appetite. “Have you tried to settle the case?” she asked.

“I put a million on the table, they countered with a hundred thousand, so we’re miles apart. They, the insurance lawyers along with the coal company, are banking on the fact that the family was screwed up and not that close. They’re also banking on the fact that a lot of jurors in these parts are either afraid of Big Coal or quietly supportive of it. When you sue a coal company in Appalachia you can’t always count on an unbiased jury. Even those who despise the companies tend to stay quiet about it. Everybody has a relative or a friend who’s got a job. It makes for some interesting dynamics in the courtroom.”

Samantha tried another small bite and looked around the room. The walls were covered with enlarged color photos and maps, some marked as trial exhibits, others apparently waiting for trial. She said, “This reminds me of my father’s office, once upon a time.”

“Marshall Kofer. I checked him out. He was quite the trial lawyer in his day.”

“Yes, he was. When I was a kid, if I wanted to see him I usually had to go to his office, if he was in town. He worked nonstop. Ran a big firm. When he wasn’t jetting around the world chasing the latest aviation disaster, he was in his office preparing for trial. They had this large, cluttered room—come to think of it, they called it the war room.”

“I didn’t invent the term. Most trial lawyers have one.”

“And the walls were covered with large photos and diagrams and all sorts of exhibits. It was impressive, even to a kid. I can still feel the tension, the anxiety in the room as he and his staff got ready for the courtroom. These were big crashes, with lots of dead people, lots of lawyers and all. He explained later that most of his cases were settled right before trial. Liability was seldom an issue. The plane went down, it wasn’t the fault of the passengers. The airlines have plenty of money and insurance, and they worry about their image, so they settle. For huge sums.”

“Did you ever consider working with him?”

“No, never. He’s impossible, or at least he was back then. Massive ego, total workaholic, pretty much of an ass. I wanted no part of his world.”

“Then he crashed himself.”

“Indeed he did.” She stood and walked to another photo, one of a mangled car. Rescue personnel were trying to remove someone trapped inside.

Donovan kept his seat and chewed on a chip. He said, “I tried that case in Martin County, West Virginia, three years ago. Lost.”

“What happened?”

“A coal truck came down the mountain, overweight and speeding, and it veered across the center line and ran over that little Honda. The driver was Gretchen Bane, age sixteen, my client, and she died at the scene. If you look closely, you can see her left foot at the bottom there, sort of hanging out the door.”

“I was afraid of that. Did the jury see this?”

“Oh yes. They saw everything. For five days I laid it all out for the jury, but it didn’t matter.”

“How’d you lose?”

“I lose about half of them. In that case, the truck driver took the stand, swore to tell the truth, then lied for three hours. He said Gretchen crossed the center line and caused the wreck, made it sound as though she was trying to kill herself. The coal companies are clever and they never send down one truck at a time. They travel in pairs, so there’s always a witness ready to testify. Trucks hauling coal that weighs a hundred tons, racing across old, twenty-ton bridges still used by school buses, and absolutely ignoring every rule of the road. If there’s an accident, it’s usually bad. In West Virginia, they’re killing one innocent driver per week. The trucker swears he was doing nothing wrong, his buddy backs him up, there are no other witnesses, so the jury falls in line with Big Coal.”

“Can’t you appeal?”

Donovan laughed as though she’d nailed her punch line. He took a swig of water and said, “Sure, we still have that right. But West Virginia elects its judges, which is an abomination. Virginia has some screwed-up laws, but at least we don’t elect judges. Not so over there. There are five members of the West Virginia Supreme Court. They serve four-year terms and run for reelection. Guess who contributes the big money to the campaigns.”

“The coal companies.”

“Bingo. They influence the politicians, the regulators, the judges, and they often control the juries. So it’s not exactly an ideal climate for us litigators.”

“So much for a fair trial,” she said, still looking at the photos.

“We win occasionally. In Gretchen’s case, we got a break. A month after the trial, the same driver hit another car. Luckily, no one was killed, just a few broken bones. The deputy on the scene got curious and took the driver in for questioning. He was acting weird and finally admitted he’d been driving for fifteen hours straight. To help matters he was drinking Red Bull with vodka and snorting crystal meth. The deputy turned on a recorder and quizzed him about the Bane accident. He admitted he’d been threatened into lying by his employer. I got a copy of the transcript and filed a bunch of motions. The court finally granted a new trial, one we’re still waiting for. Eventually, I’ll nail them.”

“What happened to the driver?”

“He became a whistle-blower and spilled the beans on Eastpoint Mining, his employer. Someone slashed his tires and fired two shots through his kitchen window, so he’s now in hiding, in another state. I give him cash to live on.”

“Is that legal?”

“That’s not a fair question in coal country. Nothing is black-and-white in my world. The enemy breaks every rule in the book, so the fight is never fair. If you play by the rules, you lose, even when you’re on the right side.”

She returned to the table and nibbled on a chip. She said, “I knew I was wise to avoid litigation.”

“I hate to hear that,” he said, smiling, his dark eyes absorbing every move she made. “I was thinking about offering you a job.”

“I’m sorry.”

“I’m serious. I could use some research, and I’ll pay you. I know how much you’re earning over at the legal clinic, so I figured you might want to moonlight as a research assistant.”

“Here, in your office?”

“Where else? Nothing that would interfere with your internship, strictly after hours and on weekends. If you’re not already bored here in Brady, it won’t be long.”

“Why me?”

“There’s no one else. I have two paralegals and one is leaving tomorrow. I can’t trust any other lawyer in town, nor anyone from any law office. I’m paranoid about secrecy, and you obviously haven’t been here long enough to know anything or anybody. You’re the perfect hire.”

“I don’t know what to say. Have you talked to Mattie?”

“Not about this, no. But if you’re interested, I’ll have a chat with her. She rarely says no to me. Think about it. If you don’t want to, I’ll understand completely.”

“Okay, I’ll think about it. But I’ve just started one job and wasn’t planning on looking for another, not so soon anyway. Plus, I really don’t like litigation.”

“You won’t have to go to court. Just hide in here, do the research, write the briefs, work the long hours you’re accustomed to working.”

“I was trying to get away from that.”

“I understand. Mull it over and we’ll chat later.”

They worked on their sandwiches for a moment but the silence was too heavy. Samantha finally said, “Mattie told me about your past.”

He smiled and shoved his food away. “What do you want to know? I’m an open book.”

She doubted that. She could think of several questions: What happened to your father? How serious is the separation from your wife? How often do you see her?

Maybe later. She said, “Nothing really. It’s an interesting background, that’s all.”

“Interesting, sad, tragic, filled with adventure. All of the above. I’m thirty-eight years old, and I’ll die young.”

She could think of no response.





11


The highway to Colton snaked through the mountains, rising and falling, offering breathtaking views of the dense ridges, then dipping into valleys filled with clusters of dilapidated shacks and mobile homes with junk cars scattered about. It clung to creeks with shallow rapids and water clear enough to drink, and just as the beauty sunk in it passed another settlement of tiny, forlorn houses stuck close together and shaded eternally by the mountains. The contrast was startling: the beauty of the ridges against the poverty of the people who lived between them. There were some pretty homes with neat lawns and white picket fences, but the neighbors were usually not as prosperous.

Mattie drove and talked while Samantha took in the scenery. As they climbed a stretch of road, a rare straightaway, a long truck approached from the other direction. It was dirty, covered with dust, with a canvas top over its bed. It was flying down the mountain, obviously speeding, but staying in the proper lane. After it passed, Samantha said, “I assume that was a coal truck.”

Mattie checked a mirror as though she hadn’t noticed. “Oh, yes. They haul it out after it’s been washed and it’s ready for the market. They’re everywhere.”

“Donovan talked about them yesterday. He doesn’t think too highly of them.”

“I’ll bet good money that truck was overweight and probably couldn’t pass inspection.”

“And no one checks them?”

“It’s spotty. And usually when the inspectors arrive the coal companies already know they’re coming. My favorites are the mine safety inspectors who monitor the blasting. They have a schedule so when they show up at a strip mine, guess what? Everything is by the book. As soon as they leave, the company blasts away with little regard for the rules.”

Samantha assumed Mattie knew everything about her lunch the day before with Donovan. She waited a moment to see if the job offer was mentioned. It was not. They topped a mountain and began another descent. Mattie said, “Let me show you something. Won’t take but a minute.” She hit the brakes and turned onto a smaller highway, one with more curves and steeper ridges. They were going up again. A sign said a picnic area with a scenic view was just ahead. They stopped at a small strip of land with two wooden tables and a garbage can. Before them lay miles of rolling mountains covered with dense hardwoods. They got out of the car and walked to a rickety fence built to keep people and vehicles from tumbling deep into a valley where they would never be found.

Mattie said, “This is a good spot to see mountaintop removal from a distance. Three sites—” She pointed to her left. “That’s the Cat Mountain Mine not far from Brady. Straight ahead is the Loose Creek Mine in Kentucky. And to the right there is the Little Utah Mine, also in Kentucky. All active, all stripping coal as fast as humanly possible. Those mountains were once three thousand feet high, like their neighbors. Look at them now.”

They were scalped of all greenery and reduced to rock and dirt. Their tops were gone and they stood like missing fingers, the nubs on a mangled hand. They were surrounded by unspoiled mountains, all ablaze with the orange and yellow of mid-autumn, and perfectly beautiful if not for the eyesores across the ridge.

Samantha stood motionless, staring in disbelief and trying to absorb the devastation. She finally said, “This can’t be legal.”

“Afraid so, according to federal law. Technically it’s legal. But the way they go about it is quite illegal.”

“There’s no way to stop it.”

“Litigation is still raging, has been for twenty years. We’ve had a few victories at the federal level, but all the good decisions have been overturned on appeal. The Fourth Circuit is loaded with Republican appointees. We’re still fighting, though.”

“We?”

“The good guys, the opponents of strip-mining. I’m not personally involved as a lawyer, but I’m on the right team. We’re in a distinct minority around here, but we’re fighting.” Mattie glanced at her watch and said, “We’d better go.”

Back in the car, Samantha said, “Kinda makes you sick, doesn’t it?”

“Yes, they’ve destroyed so much of our way of life here in Appalachia, so, yes, it makes me sick.”

As they entered the town of Colton, the highway became Center Street and after a few blocks the courthouse appeared on the right. Samantha said, “Donovan has a trial here next week.”

“Oh yes, a big one. Those two little boys, so sad.”

“You know the case?”

“Oh yes, it was quite the story when they were killed. I know more than I care to know. I just hope he wins. I advised him to settle, to take something for the family, but he wants to make a statement.”

“So he doesn’t take your advice.”

“Donovan usually does what he wants to do, and he’s usually right.”

They parked behind the courthouse and walked inside. Unlike Noland County’s, the Hopper County Courthouse was a baffling modern structure that had undoubtedly once looked thrilling on paper. All glass and rock, it jutted here and folded there, and wasted a lot of space in its daring design. Samantha figured the architect had eventually lost his license.

“The old one burned,” Mattie said as they climbed the stairs. “But then they all burn.”

Samantha wasn’t sure what this meant. Lady Purvis was sitting nervously in the hallway outside the courtroom, and she smiled with great relief when she saw her lawyers. A few others loitered about, waiting for court to convene. After a few preliminaries, Lady pointed to a dough-faced young man in a polyester sports coat and shiny boots with pointed toes. “That’s him, works for JRA, name’s Snowden, Laney Snowden.”

“Wait here,” Mattie said. With Samantha following her, she made a beeline for Mr. Snowden, whose eyes got bigger the closer she got. “You’re the representative for JRA?” Mattie demanded.

“I am,” Snowden said proudly.

She thrust a card at him as if it were a switchblade and said, “I’m Mattie Wyatt, attorney for Stocky Purvis. This is my associate, Samantha Kofer. We’ve been hired to get our client out of jail.”

Snowden took a step back as Mattie pressed ahead. Samantha, treading water, wasn’t sure what to do, so she quickly adopted an aggressive posture and look. She scowled at Snowden as he looked blankly at her and tried to absorb the reality that a deadbeat like Stocky Purvis could hire not one but two lawyers.

“Fine,” Snowden said. “Fork over the money and we’ll get him out.”

“He doesn’t have any money, Mr. Snowden. That much should be clear by now. And he can’t make any money as long as you’ve got him locked up in jail. Tack on all the illegal fees you want, but the truth is my client can’t earn a dime sitting where he’s sitting right now.”

“I have a court order,” Snowden said with bravado.

“Well, we’re about to talk to the judge about his court order. It’s going to be amended so Stocky walks. If you don’t negotiate, you’ll get left holding the bag.”

“Okay, what do you gals have in mind?”

“Don’t call me a gal!” Mattie barked at him. Snowden recoiled fearfully, as if he might get hit with one of those sexual